Monday, June 7, 2010

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Delhi HC has now ruled on similar lines to the P&H HC Order of 2009 presently in SLP before SC.

A copy of order (attached) reveals that unless Delhi Govt puts in SLP they have 30 days to appoint competent authorities and commence punitive action thereafter on developers who do not file initial "deed of apartment" for each apartment.

Whereas P&H HC had left it to DTCP to decide future course (and the matter is hanging fire for last 8 months now in SLP before SC courtesy DLF), the Delhi HC is not waiting for Parliament to legislate the changes and has directed action on the ground within 30 days!!

Some of the directions relate to:

'Bye laws must allow sharing of profits/ losses - present system of SRA 1860 does not permit sharing of profits, hence it has to be discontinued. Competent authorities will have to arrange association registration (only one for each complex) and provisions for proper record by sub registrars would also have to be made now.'

As per serial 30 of RTI Reply of DTCP dated 12 December 2008 developer can not charge any maintenance till final completion of the project. If the sanction is in phases, then till final completion of that phase of the project, he may not levy maintenance charge.

The deed of apartment of first purchaser is compulsorily required to be registered by developer even if he has already got the conveyance deed registered for his own convenience, because deed of apartment is only possible to register after OC & Declaration is registered, and the consequent delay in handing over means developer has to pay late delivery penalty to customer. DRO Gurgaon in letter dated 25 September 2008 has directed all sub registrars to ensure registration as per 1983 Act i.e. NO conveyance deed - only deed of apartment.

Files on replies under RTI are also attached. May help in tackling the builders and DTCP.

"The basis of our Association's claim on common areas contained in Annexure to UGAOA letter dated 12 January 2009, attached. The adopted bye-laws document as it is at present, is at variance with model bye-laws:

1. It is in violation of Section 10 of the Haryana Apartment Owners Act 1983, "The common profits of the property shall be distributed among, and the common expenses shall be charged to, the apartment owners according to the percentage of the undivided interest in the common areas and facilities."

2. It is in violation of Section 14(2) of the Act, "Upon removal of the property from the provisions of this Act, the property shall be deemed to be owned in common by the apartment owners. The undivided interest in the property owned in common which shall appertain to each apartment owner shall be the percentage of undivided interest previously owned by such owner in the common areas and facilities."

3. It is in violation of Section 16(3) (b) of the Act, "provisions enabling the Board of Managers to lease out certain areas of the property for the purposes for which the same are meant and for distribution of resulting proceeds to the apartment owners as income or application thereto in reduction of their common charges for maintaining the said property;"

4. It is in violation of Section 22(d) of the Act, "the property shall be subject to an action for partition at the suit of any apartment owner in which event the net proceeds of the sale together with the net proceeds of the insurance on the property, if any, shall be considered as one fund and shall be divided among all the apartment owners in percentage equal to the percentage of undivided interest owned by each owner in the property after first paying out, all the respective shares of the apartment owners to the extent sufficient for the purpose and all charges on the undivided interest in the property owned by each apartment owner."

5. It is in violation of Section 25(1) of the Act, "The State Government may, by notification, make rules for carrying into effect the provisions of this Act."

6. It is not in accord with model bye-laws notified under Section 25(1) of Haryana Apartment Owners Act 1983. This has been reported after investigation by DTP(Enforcement) Gurgaon in letter dated 26 September 2008 attached.

8. Needless to say there are many other violations - as a sample, these are sufficient - the DTCP letters, as also the letters from the revenue authorities attached make clear that all is not well with the implementation of the Apartment Owners Act in Haryana."

-- Truth resides in every human heart, and one has to search for it there, and to be guided by truth as one sees it. But no one has a right to coerce others to act according to his own view of truth. - Mohandas Gandhi

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-- Truth resides in every human heart, and one has to search for it there, and to be guided by truth as one sees it. But no one has a right to coerce others to act according to his own view of truth. - Mohandas Gandhi

You received this message because you are subscribed to the Google Groups "SAFE - Social Action Foundation for Equity" group. To post to this group, send email to socialactionfoundationforequity@googlegroups.com To unsubscribe from this group, send email to socialactionfoundationforequity+unsubscribe@googlegroups.com For more options, visit this group athttp://groups.google.co.in/group/socialactionfoundationforequity?hl=en?hl=en-GB

Delhi HC has now ruled on similar lines to the P&H HC Order of 2009 presently in SLP before SC.

A copy of order (attached) reveals that unless Delhi Govt puts in SLP they have 30 days to appoint competent authorities and commence punitive action thereafter on developers who do not file initial "deed of apartment" for each apartment.

Whereas P&H HC had left it to DTCP to decide future course (and the matter is hanging fire for last 8 months now in SLP before SC courtesy DLF), the Delhi HC is not waiting for Parliament to legislate the changes and has directed action on the ground within 30 days!!

Some of the directions relate to:

'Bye laws must allow sharing of profits/ losses - present system of SRA 1860 does not permit sharing of profits, hence it has to be discontinued. Competent authorities will have to arrange association registration (only one for each complex) and provisions for proper record by sub registrars would also have to be made now.'

As per serial 30 of RTI Reply of DTCP dated 12 December 2008 developer can not charge any maintenance till final completion of the project. If the sanction is in phases, then till final completion of that phase of the project, he may not levy maintenance charge.

The deed of apartment of first purchaser is compulsorily required to be registered by developer even if he has already got the conveyance deed registered for his own convenience, because deed of apartment is only possible to register after OC & Declaration is registered, and the consequent delay in handing over means developer has to pay late delivery penalty to customer. DRO Gurgaon in letter dated 25 September 2008 has directed all sub registrars to ensure registration as per 1983 Act i.e. NO conveyance deed - only deed of apartment.

Files on replies under RTI are also attached. May help in tackling the builders and DTCP.

"The basis of our Association' s claim on common areas contained in Annexure to UGAOA letter dated 12 January 2009, attached. The adopted bye-laws document as it is at present, is at variance with model bye-laws:

1. It is in violation of Section 10 of the Haryana Apartment Owners Act 1983, "The common profits of the property shall be distributed among, and the common expenses shall be charged to, the apartment owners according to the percentage of the undivided interest in the common areas and facilities."

2. It is in violation of Section 14(2) of the Act, "Upon removal of the property from the provisions of this Act, the property shall be deemed to be owned in common by the apartment owners. The undivided interest in the property owned in common which shall appertain to each apartment owner shall be the percentage of undivided interest previously owned by such owner in the common areas and facilities."

3. It is in violation of Section 16(3) (b) of the Act, "provisions enabling the Board of Managers to lease out certain areas of the property for the purposes for which the same are meant and for distribution of resulting proceeds to the apartment owners as income or application thereto in reduction of their common charges for maintaining the said property;"

4. It is in violation of Section 22(d) of the Act, "the property shall be subject to an action for partition at the suit of any apartment owner in which event the net proceeds of the sale together with the net proceeds of the insurance on the property, if any, shall be considered as one fund and shall be divided among all the apartment owners in percentage equal to the percentage of undivided interest owned by each owner in the property after first paying out, all the respective shares of the apartment owners to the extent sufficient for the purpose and all charges on the undivided interest in the property owned by each apartment owner."

5. It is in violation of Section 25(1) of the Act, "The State Government may, by notification, make rules for carrying into effect the provisions of this Act."

6. It is not in accord with model bye-laws notified under Section 25(1) of Haryana Apartment Owners Act 1983. This has been reported after investigation by DTP(Enforcement) Gurgaon in letter dated 26 September 2008 attached.

8. Needless to say there are many other violations - as a sample, these are sufficient - the DTCP letters, as also the letters from the revenue authorities attached make clear that all is not well with the implementation of the Apartment Owners Act in Haryana."

-- Truth resides in every human heart, and one has to search for it there, and to be guided by truth as one sees it. But no one has a right to coerce others to act according to his own view of truth. - Mohandas Gandhi

You received this message because you are subscribed to the Google Groups "SAFE - Social Action Foundation for Equity" group. To post to this group, send email to socialactionfoundationforequity@googlegroups.com To unsubscribe from this group, send email to socialactionfoundationforequity+unsubscribe@googlegroups.com For more options, visit this group athttp://groups.google.co.in/group/socialactionfoundationforequity?hl=en?hl=en-GB

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